Electronic Proceedings - United Nations Office for Outer Space Affairs

RICKY J. LEEThe Australian Space Activities Act 1998: Building the Regulatory Capacity for an Australian Launch Industryplaintiff to take proceedings only in Australia and only under the Act and, as a result, thepossibility of legal actions in foreign courts remains a source of liability for Australianlaunch operators. On the other hand, if a foreign third party chooses to sue in Australia,then the third party is likely to be bound by any Australian law limiting the liability of alaunch operator or satellite operator. In other words, if the Act can validly abolish tortactions by third parties in Australia, the abolition or limitation would apply equally toboth Australian and foreign third parties suing in Australia, though it is likely to have noeffect on limiting the rights of foreign third parties suing in foreign courts.It is unclear, however, whether the Act in fact abolishes common law claims based ontort law in Australia. The Australian Government has signalled an intention that the Actwas intended to abolish all other third party liability in Australia, especially tort liability,for launch operators. 205 However, there are reasons why an Australian court may notgive such effect. These reasons are:a) the Parliament may not have the legislative power to abolish such common lawclaims under the Constitution; 206b) the Act does not expressly specify that it intends to substitute or abolish the tortliability of launch operators;c) the Parliament may be considered to have done no more than to limit the amountof compensation payable rather than to abolish tort claims altogether; andd) Section 69(4) of the Act lends further support to the view that the legislativeintention was not to exclude tort claims.CONSTITUTIONAL CONSIDERATIONSThe Parliament indicated that the Act was enacted pursuant to the legislative powersprovided by the Constitution concerning external affairs, trading and financialcorporations, international and interstate trade and commerce, federal territories andland acquired by the Federal Government for public purposes. 207 The provision of adomestic liability régime appears to go beyond what the space treaties provide for,though the launch of a space object is a matter of international concern and has anexternal dimension to Australia. As a result, it is unclear whether the regulation ofdomestic liability is within the external affairs power of the Parliament, though thisexercise of legislative power is untested in the High Court of Australia. 208205Section 64.206Similar to the constitutions of some federal countries, s 51 of the Australian Constitution sets out the areas on whichthe Federal Parliament can legislate, two of which are corporations and external affairs.207Section 108.208One exception to this would be test flights as they cannot be regarded as concerning external affairs nor are theyconfined to the territories, federal land or relate to interstate trade or commerce. It appears in any event that the Actdoes not cover test flights under the liability régime provided under Part 4.148